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Novell Caldera Government IBM The Courts News

Novell Files New Summary Judgement Motion 60

rm69990 writes "In yet another piece of SCO news this week, Novell has filed a new motion for partial summary judgment, asking the court to declare that Novell is entitled to direct SCO to waive its claims against IBM, that Novell has the right to take these actions on SCO's behalf if SCO refuses to comply and that SCO is obligated to recognize Novell's waiver. Since SCO's case against IBM is primarily a contract case, this issue affects the IBM case far more than the ongoing copyright issue between Novell and SCO. This bad week for SCO just got even worse."
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Novell Files New Summary Judgement Motion

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  • by TubeSteak ( 669689 ) on Saturday December 02, 2006 @12:34PM (#17080872) Journal
    But is this something that IBM even wants?

    You'd think that Novell could have filed this lawsuit a year or three ago instead of waiting till right before SCO vs IBM goes to trial (in a few months).

    Why try to kill the lawsuit at this point?
    It's already imploding under the weight of SCO's garbage.
    • by cygtoad ( 619016 )
      I agree. I would like to see SCO squirm in public court for a little longer. This will help spell things out a for those that might try the same crap in the future.
    • by McNihil ( 612243 )
      Maybe it would leave Microsoft open in way or fashion. Ok I totally distrust Microsoft so I am biased here but it is my firm belief that Microsoft has more than their dirty finger in this pot.
    • by Chris Burke ( 6130 ) on Saturday December 02, 2006 @12:47PM (#17080984) Homepage
      Unfounded conspiracy theory: SCO v IBM goes to trial, SCO loses terribly, and the court rules that IBM and Linux do not in any way infringe upon SCO's property by copyright, contract, or any other method. Microsoft, seeing that the FUD engine that is SCO is losing steam fast and when fully dead will actually make IBM and Linux stronger, gets Novel to call back the attack dog, making it look like a friendly gesture but actually preventing the stronger precedent from being set.

      More likely case, though similarly unfounded: Novel has their own case with SCO regarding their UNIX contracts, and much like IBM had to go through a lengthy process before they felt their case was strong enough to order summary dismissal of many of SCO's claims, so too Novel had to build a case so that when they present this motion before the judge, they feel it is likely to be accepted. If they do in fact have the contractual right to order SCO to stop litigating IBM, then they probably want to assert their authority and use it, rather than appear as though they are allowing SCO to continue.

      But you're right, it isn't obvious to me (IASNAFL*) that this is what IBM wants. If they wanted a quick end to the case, they could have settled (with an obviously bad precedent). They seem very intent to crush SCO in their steely grasp and let the sand-like remains run between their fingers to be blown away by the wind.

      * S = So, F = Fornicating
      • by sgtrock ( 191182 ) on Saturday December 02, 2006 @01:14PM (#17081244)
        No need for a conspiracy theory at all. This is just an extension Novell asking the court to enforce their direction to SCO to waive dropping IBM's Unix license back in June 2003. It's long, LONG overdue IMO.
      • "Unfounded conspiracy theory"

        I am not so sure that it is all that unfounded. Let's look at the real players here, IBM and M$. (Novell and SCO are bit players.) Remember that M$ screwed IBM into the ground with the OS2 stuff. IBM lost a lot of money - and in fact lost a whole business. I do not think that IBM has forgotten - hence their support for Lunix. My guess is that having IBM push Lunix scares the @#@$ out of M$. Now M$ is looking at the potential for their SCO gambit to fail - and fail in such

        • I really think the whole M$ bit looks a little silly, although I understand it's because there's no schwastika in most standard fonts.
          • by jc42 ( 318812 )
            [T]here's no schwastika in most standard fonts.

            Yet another reason everyone should be migrating to Unicode. Characters U+534D and U+5350 are swastikas. Why they're in the CJK Unified Ideograph section isn't too obvious, but they're there.
            • "Why they're in the CJK Unified Ideograph section isn't too obvious, but they're there."

              It's because it's an ancient symbol in the east. You'll see it all over the place in the Tibet etc. The Nazis just appropriated a much older symbol.
      • Unfounded conspiracy theory: SCO v IBM goes to trial, SCO loses terribly, and the court rules that IBM and Linux do not in any way infringe upon SCO's property by copyright, contract, or any other method. Microsoft, seeing that the FUD engine that is SCO is losing steam fast and when fully dead will actually make IBM and Linux stronger, gets Novel to call back the attack dog, making it look like a friendly gesture but actually preventing the stronger precedent from being set.

        Unfortunately (for Microsoft),

        • the part of SCO v IBM about declaring Linux "clean" is a counterclaim by IBM

          Good point. It is possible though that as soon as SCO vs IBM is settled, SCO will implode due to not having any revenue that isn't Linux-FUD-lawsuit related. But really, I don't believe the conspiracy theory. I do think it's much more likely that Novell wants to assert their rights.
    • I don't know much of the financial details, but I suspect IBM would welcome a Very Quick dispatch of the case.

      IBM has already spent quite a bit defending themselves from this BS over three years. They have counterclaims that may allow them to recover expense, but if it goes on too long SCO's net worth (after they are utterly crushed) might not be enough. Keep in mind a big chunk of SCO's gross revenue might be owed to Novell up-front.
    • by Hope Thelps ( 322083 ) on Saturday December 02, 2006 @12:48PM (#17080998)
      You'd think that Novell could have filed this lawsuit a year or three ago instead of waiting till right before SCO vs IBM goes to trial (in a few months).

      IBM doesn't go to trial in a few months. Judge Kimball has just postponed the trial date. Hearings on the summary judgment motions will be in March. Rulings on them probably a few months after that. Actual trial, if ever needed, maybe 2008. Part of the reason for that schedule is because Judge Kimball ruled that the Novell trial should proceed first. It's worth noting that when he asked the lawyers for IBM and SCO, IBM's lawyers argued that Novell should go first.

      So that's one reason for 'why now' - because it's recently been held that the Novell case proceeds ahead of the IBM case.

      Another reason? Because of the recent rulings limiting SCO's list of infringing materials in the IBM case to that which they disclosed by the deadline. So that's 300 odd lines of code potentially subject to copyright infringement. When there were still wild claims of millions of lines SCO might have had better luck arguing that the contract terms just COULDN'T have been meant to allow Novell to waive such a massive breach. Now that argument just looks silly.

      Last reason I can think of off hand, as noted IBM's motions for PSJ have their hearings scheduled for March. Ideally, Judge Kimball will rule at that point that there is no copyright infringement, and not just because of the Novell waiver but because there was no breach needing to be waived. If he doesn't feel that he can rule that then all the arguments from all parties are on the table to rule on the waiver instead as a second best option (from the viewpoint of Linux supporters).

      There are a lot of pieces falling into place right now.
    • Re: (Score:2, Interesting)

      by bmac83 ( 869058 )

      Novell isn't filing a lawsuit; they are simply filing a motion for summary judgment. It would be a fairly irrational thing to let a case drag out in open court as legal fees continue to pile up during a trial. According to Wikipedia [wikipedia.org]:

      A party moving (applying) for summary judgment is attempting to eliminate its risk of losing at trial, and possibly avoid having to go through the directions by demonstrating to the judge, by sworn statements and documentary evidence, that there are no material issues of fac

    • by hduff ( 570443 )
      Perhaps the recent Microsoft/Novell Linux agreement had an influence?
    • > You'd think that Novell could have filed this lawsuit a year or three ago instead of waiting till right before SCO vs IBM goes to trial (in a few months).

      Novell waived SCO's "breach" of contract concerning IBM ages ago. They've also been sued by SCO for a long time now (originally for "slander of title" but I believe that's changed a few times).

      In other words, this is just the latest motion of something that's been brewing for a long time now--it's not something Novell just came up with yesterday.
    • It's not a lawsuit, it's a "motion for summary judgement". It's a request for the judge to decide the case himself, on the grounds that the case is so one-sided that it would be a waste of a jury's time. But for obvious reasons you have to wait until the other side is done trying to build their case before you can file this. Standard legal practice. Not a conspiracy. Nothing to see here, move along.
    • by penix1 ( 722987 )
      "But is this something that IBM even wants?"

      In a word....Yes! (See below)...

      "You'd think that Novell could have filed this lawsuit a year or three ago instead of waiting till right before SCO vs IBM goes to trial (in a few months)."

      You'd think....

      "Why try to kill the lawsuit at this point?
      It's already imploding under the weight of SCO's garbage."

      It doesn't kill the IBM lawsuit only the SCO claims. The more you can chisel the claims down, the better. IBM still has the counter-claims. Even if the judge grants
    • In a way, if Novell wins, then the issue whether Linux infringes may never make it to trial. After all, SCO had no authority to sue IBM in the first place. However, in terms of punishing SCO, this falls right into IBM's hands. They can definitely pursue their other counterclaims of unfair competition and Langham Act violations. Novell told SCO many times before SCO sued that SCO did not have the right. They ignored SCO and they did not settle the matter before suing IBM.
    • Uh, Novell did file this case YEARS ago. This is a new motion in an old case.
  • Bye bye SCOX (Score:5, Informative)

    by diegocgteleline.es ( 653730 ) on Saturday December 02, 2006 @12:53PM (#17081040)
    • Re: (Score:3, Interesting)

      by (H)elix1 ( 231155 )
      About time! I've been holding off for this stock to fall in the $1-1.50 USD before I ordered my paper certificates and they will have a small window before they get delisted. Looks like I place my order Monday. As far as white elephant gifts go, this is one of the best things you can give a *nix person - a shiny SCOX stock certificate all framed up. Keep in mind you will pay much more for the chunk of physical paper, but people loved the pets.com and other dot bombs. This one is special, or at least ha
  • by iamacat ( 583406 ) on Saturday December 02, 2006 @12:56PM (#17081058)
    And just throw out the case. Court cases have been dismissed because of much smaller irregularities. SCO kept changing its claims, making unreasonable evidence requests and then failing to produce their own part of evidence. They are trying to profit by presenting an undecided court case as fact and selling their "indemnity licenses". Let them appeal if they want - either they'll get their shit together and be clear on what they are claiming that didn't get heard, or the appeal will be thrown out as well.
    • In terms of copyright/IP law, this case might set the scene for 21st-century American litigation. Were it not so significant I doubt Slashdot would pay such close attention to it.

      Judges are human beings and subject to all the vices of the rest of us - could it be the kudos of fronting such a trial would outweigh more logical considerations about the wisdom of allowing the case to continue?
    • its actually better for the case to go at least to the point where the judge can file a Summary Judgement (case dismissed with more prejeduce than the entire membership of the KKK) since that denovo review bit will basically cancel any chance of an appeal. if the subject comes up and Kimball or Wells basically can just hand the new judge a folder and a card key (actual evidence TSCOg side and the key to the warehouse of Novell/IBM side evidence) then things become simpler.

      Some times you do a Hit quietly
      • Well said. This point has been discussed before and just that conclusion reached.
        The primary reason that the case has not been thrown out is to obviate any chance of SCO calling for a retrial or of an appeal.

        Just following the case in the press, on Groklaw and here have shown that Kimball and Wells have been scrupulously fair (over-fair in some peoples eyes) in allowing SCO as much leeway as possible to avoid those eventualities.
        The fact that SCO seem to have managed to dig themselves an ever deeper hole

  • by BrianRoach ( 614397 ) on Saturday December 02, 2006 @12:59PM (#17081084)
    Ever wonder if this was MS's plan all along? Not to win?

    By funding this charade via SCO, they bought themselves time.

    Linux had been gaining server market share, and they knew their new product was going to be severely delayed .... so why not toss some serious FUD into the market as long as possible until they could get their new platform to market? Vista comes out, SCO goes down the tubes. It's win-win for MS.

    I'm not usually in the tinfoil fedora (pun somewhat intended)camp but this thought came to mind this morning.

    - Roach
    • by Anonymous Coward
      Consider this.

      M$ is now getting Vista out to businesses and to the public in a couple of months.

      M$ now has a deal with Novell, and with Novell now showing strength in this ongoing matter with SCO, it is only helping M$.

      Novell now will fight with SCO in court while M$ works on its next OS which will work with Linux.

      My thought is maybe M$ wants to find a way to get Linux software to run natively in the windows environment allowing M$ to say, 'Look, we can run Window and Linux software at the same time with ju
      • Re: (Score:1, Insightful)

        by Anonymous Coward
        That would be pretty difficult considering they'd have to rewrite a lot of GPLed code so they could close it up for their version of Windows. Besides, why bother when Cygwin is already available for free? Not to mention that VMWare can run Linux in Windows, (or Windows in Linux).
      • Novell now will fight with SCO in court while M$ works on its next OS which will work with Linux.

        You make that statement as though Novell has only a single department and can only deal with one issue at a time. I don't know about you, but I've seen tremendous improvements in SuSE since the 9.0 release (aside from 9.2 which was to SuSE 9.1 as Windows 3.11 was to Windows 3.1), more so since 9.3, and they have been doing this WHILE getting all their ducks in a row where slaughtering (new)SCO is concerned.

    • Ever wonder if this was MS's plan all along? Not to win? By funding this charade via SCO, they bought themselves time.

      And the recent Micro$oft and Novell agreement makes me wonder if we even know all of what is going on. What is Micro$oft up to next? But I didn't think much of Micro$oft owning part of SCO whey back when either, but now it is apparent.

      But will not catch me buying NOVL any time soon, partnerships with Micro$oft rarely do well when all is counted.

    • Re: (Score:3, Funny)

      by icepick72 ( 834363 )
      So it's Microsoft's plan if SCO wins and also if SCO loses. Hahahahaha. I think your tinfoil hat was used Thanksgiving weekend to cook a Turkey's rear-end. Better get a new piece of foil out of the box.
    • "Ever wonder if this was MS's plan all along? Not to win?"

      A love how pure speculation is now piled on top of the previous pure speculation. Look, I can do it too:

      I wonder if it was RMS's plan all along for Novell to lose this case so that IBM could win it's case so Novell would be tempted to make a deal with MS, so Linus would adopt GPLv3 so MS would have to ...
  • Oh, very clever! (Score:1, Insightful)

    by Epsillon ( 608775 )
    Can't you see the logic? Novell *waives* IBM's transgression rather than letting the court prove there wasn't one in the first place. Now, coming as it does after the MS deal and the spectre of patent issues, does something not smell a little like a rotten herring?

    There's enough conspiracy theory to go around, by the way. Just grab a chunk and go make your own post. This one's mine...
    • Re:Oh, very clever! (Score:4, Interesting)

      by Hope Thelps ( 322083 ) on Saturday December 02, 2006 @01:11PM (#17081210)
      Novell *waives* IBM's transgression rather than letting the court prove there wasn't one in the first place. Now, coming as it does after the MS deal

      Novell's waiver [novell.com] was over 3 years ago and has been public knowledge for most of that time. All that's happening now is that Novell are asking for a judgment declaring that their waiver is valid. IBM's motions for partial summary judgment on the copyright issue are all ready on the table. Chance are the judge will find that the 300 odd non-contiguous lines of allegedly infringing code don't amount to infringement of a protectable element anyway even IF they turn out to have been copied verbatim from SysV (very unlikely) and even if SCO is eventually ruled to own SysV (very unlikely). This is at most a back up motion in case the judge isn't convinced by everything else.
    • by rm69990 ( 885744 )
      Ummm, if you actually read the article/motion, you would know Novell waived SCO's claims back in June 2003. Furthermore, IBM has specifically used Novell's waiver as one of their defenses, before the SCO vs Novell lawsuit even started. The fact that you got modded insightful just shows how little the vast majority of Slashdot's readers actually know about this case.
  • by Anonymous Coward
    Judge K said he wouldn't accept dispositive motions before the end of discovery so Novell couldn't have filed this before now.

    Judge K can decide this one without going to a jury because it can be settled as a matter of law. All he has to do is read and interpret the contract. The contract is pretty unambiguous so my guess is that Judge K will grant it.

    What effect will this have? Novell told SCO that it couldn't cancel IBM's license. Judge K's decision may be limited to just that matter. This probably w
    • Judge K said he wouldn't accept dispositive motions before the end of discovery so Novell couldn't have filed this before now

      You're confusing SCO v IBM with SCO v Novell. Discovery is ongoing in the Novell case. In fact there's a motion [groklaw.net] by Novell to compel discovery from SCO coming up for hearing soon. Agree with everything else you say though, and yes this is just one more motion in an ongoing case. It's not like Novell have been sitting on their hands until now as some people seem to think.

    • Nope. Novell also, in October 2003, directed SCO to waive their right to claim IBM's own code as protected. In Feb 2004, they directed SCO to waive their right to claim Sequent's own code as protected.
  • by deadlinegrunt ( 520160 ) on Saturday December 02, 2006 @01:57PM (#17081560) Homepage Journal
    Where are their opinions on this matter now? Mr. Enderle was a very vocal person on this subject at one time for example. There were others of course but he stood out being one of the most vocal with how malicious OSS community is and how IBM has its days numbered if for no other reason than previous evils it has committed along with Groklaw being devoid of any substance or meaningful insight on this subject. Credibility is inversely proportional to actually being correct it would appear in this light, so why aren't these people talking now?
  • by chill ( 34294 ) on Saturday December 02, 2006 @03:54PM (#17082568) Journal
    I think SCO is gonna get a nice visit from Robot Santa this year. They've been naughty.

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